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[Federal Register Volume 89, Number 245 (Friday, December 20, 2024)]
[Notices]
[Pages 104105-104106]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-30434]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XE514]

Endangered Species; File No. 21516

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice; receipt of application for permit modification and 
request for public comments.

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SUMMARY: NMFS received a request from Virginia Electric and Power 
Company, doing business as (d.b.a), Dominion Virginia Power (Dominion) 
for modification of an incidental take permit, pursuant to the 
Endangered Species Act (ESA) for activities associated with the 
otherwise lawful continued operation and maintenance of the Dominion 
Chesterfield Power Station in Chesterfield, VA. We are publishing this 
notice to inform the public that we are considering re-issuing the 
permit, with modifications, to authorize additional take of Atlantic 
sturgeon (Acipenser oxyrinchus oxyrinchus) from the Chesapeake Bay 
Distinct Population Segment.

DATES: To allow for timely processing of the permit application, we 
must receive your comments no later than January 21, 2025.

ADDRESSES: The application is available for download and review at 
https://www.fisheries.noaa.gov/national/endangered-species-conservation/incidental-take-permits and at https://www.regulations.gov. The application is also available upon request 
(see FOR FURTHER INFORMATION CONTACT).
    You may submit comments, identified by NOAA-NMFS-2024-0125, by 
either of the following methods.
     Electronic Submissions: Submit all electronic public 
comments via the Federal e-Rulemaking Portal https://www.regulations.gov and type NOAA-NMFS-2024-0125 in the Search box. 
Click the ``Comment Now!'' icon, complete the required fields, and 
enter or attach your comments.
     Email: Submit information to [email protected].
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the specified 
period, may not be considered by NMFS. All comments received are a part 
of the public record and will generally be posted for public viewing on 
https://www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.) confidential business 
information, or otherwise sensitive or protected information submitted 
voluntarily by the sender is publicly accessible. NMFS will accept 
anonymous comments (enter ``N/A'' in the required fields if you wish to 
remain anonymous).

FOR FURTHER INFORMATION CONTACT: Lynn Lankshear, 
[email protected] or (978) 282-8473.

SUPPLEMENTARY INFORMATION: Dominion is requesting modification of their 
Incidental Take Permit (ITP) (No. 21516-01) to include the annual 
incidental capture of up to 18,363 Atlantic sturgeon eggs for the 
duration of the permit (i.e., through December 30, 2025). All of the 
eggs would belong to the Chesapeake Bay Distinct Population Segment 
(DPS) of Atlantic sturgeon that is listed as endangered.
    Atlantic sturgeon spawn in well-oxygenated, flowing freshwater over 
hard substrate with interstitial spaces (e.g., gravel, cobble) of 
tidally-affected rivers. Male and female Atlantic sturgeon must spawn 
(i.e., release milt and eggs, respectively) in close proximity to each 
other and at the same time for fertilization of some eggs to occur. The 
eggs become sticky within minutes of being fertilized and adhere to the 
substrate for the relatively short and temperature-dependent period of 
development prior to hatching (Ryder 1888; Dees 1961; Murawski and 
Pacheco 1977; Hilton et al. 2016; Siddique et al. 2016).
    Unfertilized eggs that float away from the spawning site are not 
expected to be fertilized at a later time because milt released 
elsewhere by a male sturgeon would be quickly dispersed and diluted by 
the flowing river water making a chance encounter between an 
unfertilized egg and an Atlantic sturgeon sperm cell highly unlikely. 
Male Atlantic sturgeon move to the spawning grounds before females and 
then search for or follow females as each female moves onto the 
spawning grounds (Hilton et al. 2016; NOAA 2017; Breece et al. 2021). 
The scrapes and abrasions observed on male Atlantic sturgeon captured 
during the spawning season support that, similar to Gulf sturgeon 
(Acipenser oxyrinchus desotoi) and other sturgeon species, male 
Atlantic sturgeon rub against the female during spawning which induces 
the female to release her eggs at the same time as the male is 
releasing milt (Ryder 1888; Bruch and Binkowski 2002; Sulak and Randall 
2009; Sulak 2014; Balazik and Musick 2015). The simultaneous release of 
eggs and milt in the same location maximizes the number of eggs that 
are fertilized before river currents disperse the eggs and dilute the 
milt.
    Fertilized eggs that do not adhere to the substrate or that become 
dislodged from the substrate before hatching are not expected to 
survive because the environmental conditions at the spawning site are 
necessary for egg and early life stage survival. The hatched-out 
embryos and the subsequent larvae need well-oxygenated freshwater, and 
the substrate used for spawning provides interstitial spaces where the 
early life stages shelter from predators (Bain et al. 2000; Kynard and 
Horgan 2002; Niklitschek and Secor 2009). A number of fish species have 
been identified as likely feeding on the early Atlantic sturgeon life 
stages in the James River and in the other Chesapeake Bay tributaries 
(Hilton et al. 2016; Bunch et al. 2021; Secor et al. 2022).
    As described above, the best available information supports that 
free-floating sturgeon eggs are non-viable. However, the take of eggs 
from Atlantic sturgeon listed under the ESA is prohibited unless 
authorized in a permit in accordance with 50 CFR 222.307 or 222.308 or 
exempted in accordance with 50 CFR 402.
    NMFS published notice in the Federal Register on January 11, 2021 
(86 FR 1945), that we had issued an ITP (No. 21516) to Dominion 
pursuant to the ESA of 1973, as amended, for the incidental take of 
Atlantic sturgeon larvae (Acipenser oxyrinchus oxyrinchus) associated 
with the otherwise lawful operation of the Dominion Chesterfield Power 
Station (CPS) in Chesterfield, VA. All of the larvae would belong to 
the Chesapeake Bay DPS of Atlantic sturgeon based on where CPS is 
located. The permit was issued for a duration of five years.
    In September 2021, Dominion captured three Atlantic sturgeon eggs 
belonging to the Chesapeake Bay DPS while it was carrying out required 
entrainment monitoring at CPS during a high river flow event. Take of 
Atlantic sturgeon eggs was not anticipated or authorized in the 2021 
permit. Dominion presumed that the eggs were in the vicinity of CPS 
because of the high river flow event. Therefore, Dominion requested 
modification of their permit to authorize the incidental take of up to 
36,985 Atlantic sturgeon eggs belonging to the Chesapeake Bay DPS 
during anticipated high river flow

[[Page 104106]]

events that could occur during the duration of the permit (i.e., 
through December 30, 2025). Dominion also requested several changes to 
the permit conditions based on anticipated operational changes at CPS 
(87 FR 47190; August 2, 2022).
    NMFS re-issued Permit No. 21516 with the modified permit conditions 
for operational changes only, because Atlantic sturgeon eggs were taken 
at CPS under normal river flow conditions after the close of the public 
comment period (88 FR 82324; November 24, 2023). Therefore, Dominion 
needed to reconsider its presumption that the entrainment of sturgeon 
eggs could only occur during high river flow conditions and revisit its 
estimated take of sturgeon eggs at CPS before NMFS could proceed with 
Dominion's permit modification request to include take of eggs.

Background

    Section 9 of the ESA and Federal regulations prohibit the ``take'' 
of Atlantic sturgeon belonging to the Chesapeake Bay DPS. The ESA 
defines ``take'' to mean harass, harm, pursue, hunt, shoot, wound, 
kill, trap, capture, or collect, or to attempt to engage in any such 
conduct. However, under section 10(a)(1)(B) of the ESA, we may issue 
permits to authorize incidental take. ``Incidental take'' is defined by 
the ESA as take that is incidental to, and not the purpose of, carrying 
out an otherwise lawful activity. Regulations governing ITPs for 
threatened and endangered species are found at 50 CFR 222.307.
    Dominion is requesting authorization to allow for the incidental 
take of up to 36,726 Atlantic sturgeon eggs for the duration of the 
permit (i.e., through December 30, 2025), based on an average annual 
take of up to 18,363 Atlantic sturgeon eggs (95 percent CI = 4,567-
47,617). All eggs are expected to belong to the Chesapeake Bay DPS of 
Atlantic sturgeon, fall spawning population, based on the fidelity of 
adults to the spawning river and the spawning season.

Conservation Plan

    Dominion is proposing to mitigate for the take of Atlantic sturgeon 
eggs with the same studies that serve as the mitigation for the take of 
Atlantic sturgeon larvae, ``Sturgeon Research Movement'' and ``Digital 
Holography,'' with revisions to the studies as needed.

National Environmental Policy Act

    In compliance with the National Environmental Policy Act (NEPA), we 
analyzed the impacts of the proposed modifications of the ITP and the 
habitat conservation permit. We prepared a draft Supplemental 
Information Report (SIR) that describes why there is no need to 
supplement the 2020 environmental assessment and finding of no 
significant impacts. We have made the draft SIR available for public 
inspection online (see ADDRESSES).
    We will also evaluate whether modification of the permit would 
comply with section 7 of the ESA by conducting an intra-Service section 
7 consultation. We will use the results of this consultation, in 
combination with the above findings, in our final analysis. If the 
requirements are met, we will issue the modified permit to the 
applicant.
    We will publish a record of our final action in the Federal 
Register.
    Authority: This notice is provided pursuant to section 10(c) of the 
ESA (16 U.S.C. 1531 et seq.) and NEPA regulations (40 CFR 1506.6).

    Dated: December 16, 2024.
Lisa Manning,
Acting Chief, Endangered Species Division, Office of Protected 
Resources, National Marine Fisheries Service.
[FR Doc. 2024-30434 Filed 12-19-24; 8:45 am]
BILLING CODE 3510-22-P
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